The case is called out.
Learned counsel for the bail-applicant Sri Chandra Bhushan, Advocate, learned counsel for the complainant Sri Akhand Kumar Pandey, Advocate and learned A.G.A. for the State Ms. Nikita Mishra, Advocate are present in the Court.
The present bail-application is moved on behalf of accused-applicant-Tufani @ Tufan Singh, who is involved in Case Crime No.129 of 2019, under Sections 376/506 of I.P.C. and Sections 5/6 of POCSO Act, registered at Police Station Sakran, District Sitapur. Copy of the bail-application has already been received in the office of learned G.A.
The occasion of present bail-application has arisen on rejection of bail-plea of the accused-applicant by learned Special Judge, POCSO Act, Sitapur vide order dated 20.11.2019.
Counter affidavit and rejoinder affidavit in the case have already been exchanged between the parties. As such, the case is riped for hearing.
Reading over the F.I.R., learned counsel for the bail-applicant submits that opposite party no.2, the complainant of the case, viz. mother of the victim lodged the F.I.R. that her daughter, the victim went to watch a barat procession at about 09:00 P.M. in the night of 08.06.2019, at about 10:00 P.M., she returned weeping and complained to the mother, a lad working on the floor mill of Raj Kumar Jaiswal, one of the villagers, gripped her from mouth, lifted away to a lonely place and committed rape. He threatened, not to tell anybody else otherwise, she will be beaten further. However, mother of the victim lodged the F.I.R. of the incident with the Police Station of the locality.
Learned counsel further submitted that medical examination on the allegations was done and doctor opined that recently the victim was subjected to forcible sexual assault as the signs to that effect are visible on her private parts. The radiological age of the child is reported about 14 years only.
Learned counsel submitted that no doubt the girl was sexually abused in accordance with the complainant's information as corroborated with the medical evidence but so far as the accused-applicant is concerned, he is not connected with the present incident of sexual assault because, the victim-girl neither told the name specifically of the present accused-applicant but according to her version, it appears that she herself did not know and identified the person who committed rape with her only, she collected her memories that the culprit was seen by her working on the floor mill of Raj Kumar Jaiswal. On the other hand the present accused-applicant is son of the floor mill owner, a native of the same village and well known and conversant to the victim.
Learned counsel further submitted that this was further confirmed in the course of trial, when the complainant-opposite party no.2, i.e. mother of the victim herself was subjected to the examination on oath before the trial court, the mother denies that the name of present accused-applicant was taken by her to the Investigating Officer. The victim-girl when subjected to the examination, her prudence test done by the trial court, before recording the statement and, when he satisfied that the victim is understanding the question and rationally replying the answers, he recorded her statement. The girl in very clear and unambiguous words denied the involvement of present accused-applicant as a person who committed rape with her on the date of incident.
Learned counsel further submitted that trial is running, the material witness of the incident namely, the complainant of the case and victim herself have already been subjected to examination before the Court and there is no question of tampering the evidence or affecting them adversely, the accused-applicant has no criminal antecedent and is a local resident of the village, which is within the local jurisdiction of the Court, he is not in a position to flee away from the process of the Court, therefore, deserves to be granted bail.
Learned A.G.A. on the other hand submitted that the girl of tender age was subjected to sexual abuse by the accused-applicant, her statement is material, she herself being a victim, her statement could not be itself disbelieved but so far as identity of the person, who sexually assaulted on her and committed rape on her, learned A.G.A. has no rebuttal to the fact as arisen from the statement in Court as well as the version made in the F.I.R.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Looking into the role, complicity of the accused-applicant in the offence, the prima facie case without making any comment as to the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Tufani @ Tufan Singh) involved in Case Crime No.129 of 2019, under Sections 376/506 of I.P.C. and Sections 5/6 of POCSO Act, registered at Police Station Sakran, District Sitapur be released on bail on his furnishing personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 23.2.2021 Saurabh